Republicans may have lost a court battle over a Pennsylvania state senate seat in western Pennsylvania, but the argument over how to count certain mail-in ballots at the heart of the case could lead to changes to the state's election law.
Democratic state Sen. Jim Brewster won by 69 votes over Republican candidate Nicole Ziccarelli in a race to represent Allegheny and Westmoreland counties in the upper chamber of the state's General Assembly.
But Ziccarelli asked a federal judge to change the outcome of the race, which hinged on the fact that Allegheny and Westmoreland county election officials counted ballots differently. In Allegheny County, officials ruled that mail-in ballots without a date filled in on the outer envelope would still count. In Westmoreland County, officials ruled that mail-in ballots missing the date would not count.
Brewster was finally sworn in Wednesday after the federal judge ruled earlier in the week that it was a state matter and that Brewster's victory, which was certified by the Pennsylvania Department of State, will stand.
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Ziccarelli's lawsuit argued that the different treatment of ballots with the same deficiency amounted to a violation of voters' equal protection right guaranteed by the Constitution.
The loss doesn't mean that Republican state lawmakers won't use the case as one of the main reasons that Pennsylvania's election code needs to be cleaned up before the next election.
The GOP controls both chambers of the state General Assembly, and some have already proposed legislation to rein in mail-in voting, which some in the Republican party have blamed for President Donald Trump's loss in Pennsylvania last year.
Politics
Mail-in voting was approved in 2019 by the Republican-controlled legislature, and its implementation for the first time in a presidential election came as millions of Pennsylvanians sought an alternative to going in-person to a polling place.
More than 3 million Pennsylvania voters asked for a mail-in ballots and more than 2.6 million of them cast their vote using one in the November election.
But confusion by voters in how to fill out the complicated two-envelope mail-in ballot that includes several requirements like a signature on the outer envelope and a filled-in date led to numerous lawsuits and extrajudicial guidance from Secretary of State Kathy Boockvar, the state's top election official and a Democrat in Gov. Tom Wolf's administration.
Much of the election code issues have been settled by the state Supreme Court, but the problem that arose in the Brewster-Ziccarelli senate race proved particularly concerning because it so neatly challenged a fundamental equal rights of voters, attorney Ben Geffen of the Public Interest Law Center said.
"It raises a really interesting constitutional issue, and it’s a clean case. It’s not like a theoretical question," Geffen said in an interview prior to the federal judge's ruling.
The judge rejected the argument by Republican challenger Nicole Ziccarelli that Allegheny County's decision to count mail-in ballots that lacked a handwritten date — and state court decisions allowing it to count them — violated her rights and the rights of voters.
But Republicans have signaled a broader effort to clean up the election code around mail-in ballots so that counting ballots differently between counties doesn't happen again.
The 2019 law that vastly expanded mail-in voting says the voter shall “fill out, date and sign” a declaration on the outside envelope, although it does not say that leaving off a date automatically disqualifies a ballot.
Ziccarelli sued Allegheny County, but the state Supreme Court upheld the county’s decision to count the ballots in a 4-3 ruling. Ranjan refused to dispute the court’s ruling — despite Ziccarelli’s urging — and said it is binding on federal courts and nullifies Ziccarelli’s arguments that Allegheny County was wrong to count the ballots.
The state Supreme Court's deciding vote came from Democrat David Wecht, who decided that the ballots should count in this past election, if not in future elections.
He wrote that a date is clearly required, but it might not have been clear to voters under a new law with ambiguous wording, questionable voter education about the consequences and a lack of precedent.
Brewster's win does not change the balance of power in the Senate, where Republicans hold 28 of the chamber’s 50 seats.
Brewster is a former mayor of McKeesport, while Ziccarelli is a lawyer from New Kensington.
